State v. Richards

Superior Court of Maine, Penobscot

July 21, 2017

STATE OF MAINE, Plaintiff,v.MICHAEL RICHARDS, Defendant.

ORDER ON MOTION TO SUPPRESS

The
Defendant, Michael Richards, is charged in a three-count
indictment with the offenses of Possession of Sexually
Explicit Materials (Class C) and Possession of Sexually
Explicit Materials (Class D), Mr. Richards, through his
counsel, Hunter J. Tzovarras, Esq., filed a Motion to
Suppress, dated March 23, 2017. The motion seeks "to
suppress the search of the computers taken from [the
Defendant's] home on April 12, 2012, " on the
grounds that "Mr. Richards never gave consent to search
his computers." Hearing was held on the Defendant's
Motion on May 15, 2017.[1] At the hearing, the State of Maine was
represented by Assistant District Attorney Suzanne Russell,
Esq., The Defendant was represented by Attorney Tzovarras.
The hearing featured extensive testimony from Detective David
Armstrong of the Maine State Police, In addition, the parties
presented the audiotape of a lengthy interview of Mr.
Richards conducted by Detective Armstrong, which occurred in
April 2012[2] and took place at Mr. Richards'
apartment. The audiotape, which runs to nearly an hour in
length, consists almost exclusively of a discussion between
Detective Armstrong and Mr. Richards. It was identified as
State's Exhibit 5, and was admitted without objection.
The audiotape was played to completion during the May 15
hearing, and the court has since reviewed it carefully to
confirm both the details and the context of Detective
Armstrong's interactions with Mr, Richards. Based upon
the audiotape, and as set forth more fully below, the court
disagrees with the Defendant's assertion that he did not
consent to the removal and search of his computers. The court
therefore denies the Defendant's Motion to Suppress.

FINDINGS
OF FACT

Detective
Armstrong testified that he has been employed by the Maine
State Police for 32 years, the last 17 of which have been as
a detective. His "primary responsibility" is
"child pornography investigation." Detective
Armstrong explained the technical process through which
computers "share information through downloaded
programs, " which "creates a direct connection from
one person's computer to another." In many
"early" child pornography investigations, the
program most frequently used to connect computers was
"Limewire, " More recently, there are "many
programs" upon which consumers of child pornography
rely. Detective Armstrong further explained the mechanics of
investigations of this nature, and characterized his work as
"proactive, " rather than
"referral-based." Detective Armstrong testified to
the process through which individual images were located)
through the creation of "digital fingerprints" that
directed his attention to "specific files of
interest." He ultimately identified 32 images and,
although he did not view every one of them, he personally
viewed four and identified two as containing images of child
pornography. Detective Armstrong conceded that he is "an
investigator and not a forensic analyst." The court does
not believe this distinction compromises the foundation upon
which Detective Armstrong approached Mr. Richards on April
12, 2012.

More
generally, the court found Detective Armstrong to be a
credible witness. He exhibited candor, was responsive to the
questions he was asked both by the State and by defense
counsel, and did not appear to be exaggerating or
overreaching in his testimony. Detective Armstrong did not
attempt to evade or quibble with questions he faced on
cross-examination. In particular, he agreed under
cross-examination that he "could have obtained a search
warrant" but "chose not to." He explained that
the reason for this was that it was necessary first to
determine whether the occupant of the physical address at
which the computers were located corresponded to the
individual identified by the Internet service provider as
maintaining the account that generated the electronic
fingerprints. This is particularly true in the case of the
multi-unit apartment dwellings of the type involved in this
investigation. Detective Armstrong also acknowledged that he
used an "improvised consent form" to
"inventory" the computers taken from Mr. Richards
that was not in fact the form typically used when such
property is seized. Detective Armstrong agreed with defense
counsel that the "improvised consent form" was
"somewhat careless attention to detail and
preparation" on his part and further agreed that
"it would have looked better if I had" the proper
form. However, the court finds that the existence of consent
is a separate question from that of the form upon which the
consent was expressed. As noted, much of the court's
reasoning relies upon the substance of the audiotaped
interview.

The
Audiotaped Interview

Based
upon its careful review of State's Exhibit 5, the court
makes the following findings. On April 12, 2012, Detective
Armstrong travelled to the apartment complex at which Mr.
Richards then resided. Upon arrival, he encountered Mr.
Richards in the "stairwell" of the complex, and
immediately identified himself as a State Police detective.
He then asked for, and received, Mr. Richards' permission
to enter his apartment, and waited in the
"entryway" while a home health aide who provided
Mr. Richards with regular assistance vacated the premises.
Detective Armstrong advised Mr. Richards that he was
"investigating illegal activity in the area, " and
that his "investigation led him to this apartment."
Detective Armstrong did not provide a specific explanation of
the investigation, and instead asked Mr. Richards if he knew
"why I am here." Detective Armstrong instructed Mr.
Richards not to "play with" the computer at which
he was then seated, because "it's part of why I am
here." Detective Armstrong said that he would be honest
with Mr. Richards and asked for honesty in return, and then
told Mr. Richards, "we did not pick your apartment out
of thin air." Throughout this initial interaction,
Detective Armstrong maintained a friendly tone and an almost
casual demeanor, telling Mr. Richards at one point that
"you might be in trouble, you might not but I want you
to feel like you can talk to me in either case." To this
statement, Mr. Richards replied, "I want to cooperate, I
don't want to be arrested." In response, Detective
Armstrong stated, "you will not be arrested
today-period."

When
Detective Armstrong asked whether Mr. Richards knew the
reason for his presence, Mr. Richards replied, "it's
the child porn, isn't it?" Mr. Richards then stated,
"I have always had issues with this, obviously I have
failed to control it." These statements were made
without any particular prompting; they were specific
responses to a vaguely phrased question from a State Police
detective who had already identified himself as such. Once
Mr. Richards acknowledged that he had "issues" with
"child porn/' he asked "what should I expect
here/' and repeated his concern about being arrested.
Detective Armstrong then asserted for a second time that
"you will not be arrested/' this time adding to his
reassurance that Mr. Richards would only be arrested "if
you have a video of a murder or if you have a live child
here." These statements are obviously, and
intentionally, hyperbolic. They are not deceptive. They
strike the court as serving the purpose of refocusing Mr.
Richards' attention rather than attempting to extract
information from him.

Mr.
Richards asked what would "happen next/' and
Detective Armstrong stated that "our technicians want to
look at your computer, make sure you aren't filming here,
and see what else is on there." Detective Armstrong then
asked "can we do that?", to which Mr. Richards
replied "How long will it take?" Detective
Armstrong explained that he would "bring the computer
out to an analyst" in the parking lot area, who would
then "take a look at it while we keep talking." Mr.
Richards said again, "I don't know what to expect, I
know I have a problem." For a third time, Detective
Armstrong then assured Mr. Richards "you will not be
arrested, " adding that he (Detective Armstrong) would
"leave today and go home to Augusta." Detective
Armstrong added that Mr. Richards "would probably be
charged with something, " but that this decision would
be "up to the D.A."

This
exchange is of particular significance. Throughout, Detective
Armstrong was not only not deceptive but notably candid,
qualifying his reassurances that Mr. Richards would not be
arrested by noting that he would probably be prosecuted.
Later in the interview, Mr. Richards asked whether "I
will have jail time for this, " and Detective Armstrong
responded again with candor, stating "I don't know,
I won't say 'yes' and I won't dare say
'no.'" He provided a fairly lengthy explanation
of the considerations that go into a sentencing analysis, and
noted that Mr. Richards-who has physical limitations that
require him to use a wheelchair-might not be the subject of a
jail request by the prosecutor (Detective Armstrong's
precise formulation of this was "you are in a
wheelchair, they might not want jail for you, you might pay a
fine instead." Detective Armstrong added that Mr.
Richards should "get with your counselor" and
"work damn hard to show progress" to "make the
case against jail, " but concluded-again candidly, and a
bit bluntly-"kids are getting abused to put this stuff
out there, so it is hard for me to say there will be no jail
time." Mr. Richards then observed that "my mother
always warned me this would happen/' explaining that
"she caught me once."

Having
established the purpose and the parameters of the
investigation, the interview turned next to the issue of
consent to search the computers. In fact, Detective Armstrong
said specifically to Mr. Richards "I want your consent
to take the computer to the lab to do a full forensic."
Detective Armstrong added that "if your answer is
'no/ I won't take" the computer. In response,
Mr. Richards said "I don't want to be uncooperative,
" and asked "what will happen?" Detective
Armstrong replied "I have to seize the computer/ it has
porn on it, I can't leave it here with illegal stuff on
it." Detective Armstrong added that "I could get a
search warrant, " and Mr. Richards said again "I am
not trying to be uncooperative here." Detective
Armstrong then asked Mr. Richards if he wished to "sign
a consent form/' and Mr. Richards answered
"Sure." Detective Armstrong then cautioned Mr.
Richards that "you don't have to sign it, I will get
a search warrant if I have to, but I am going to have to take
the computer today" in either case "because of the
porn on it." Mr. Richards asked "what happens if I
don't give consent. At that point. Detective Armstrong
stated, in a matter-of-fact tone, that "I am not trying
to influence you one way or the other, " and explained
that he would seek a search warrant if consent were not
forthcoming (it was at this point that Detective Armstrong
added the further explanation that he would need to take the
computer with him in either case because of the presence on
it of the illegal material). Mr. Richards then agreed again
to sign the proffered "consent form, " and
Detective Armstrong left the apartment to retrieve a form
from his vehicle.

Upon
his return to the apartment, there was discussion of a second
computer, referred to as a "broken laptop, " which
Mr. Richards explained was "not working" and which
Detective Armstrong asked to take as well. That machine was
ultimately included in the "consent form" that was
completed and, at the hearing, admitted into evidence as
State's Exhibit 7. There was also a "thumb
drive" identified and seized. That item was the subject
of minimal discussion, but Mr. Richards was quite clear in
indicating no concern about having it included in the items
seized by Detective Armstrong. The form used by Detective
Armstrong is captioned "Maine State Police Computer
Crimes Unit, " and identified specifically as an
"Evidence Control Sheet." It bears a "Case
#" (12-096), and is dated "4-4-12." Mr.
Richards' signature appears next to an "X"
indicator, along with a second, hand-written date of
"4/4/12." Detective Armstrong explained his view of
the "consent form" to Mr. Richards, stating "I
have asked for consent and you've given it to me."
Detective Armstrong then stated "I know why you
didn't want to" earlier, adding "I will have to
think about that later." He then asked Mr. Richards to
sign the form. Mr. Richards did so, without further question
or comment. There followed some discussion of various
hypothetical circumstances, including observation of live
sexual activity in the home as opposed to video of sexual
activity. Mr. Richards asked about an event that took place
earlier in his life, apparently during his early or middle
teen years, in the context of explaining that "I have
always had issues with this." Detective Armstrong
listened to his description of the earlier events, and
(apparently) concluded that the events were of no relevance
to the immediate investigation.

Several
points are relevant here. It is notable, and must be
acknowledged, that Detective Armstrong used an improvised
consent form to obtain Mr. Richards' signature. He
conceded the point in his testimony, and agreed that "it
would look better" if he had used the proper form. Under
cross-examination, Detective Armstrong further conceded that
he had used the proper form "hundreds of times."
With that acknowledgment, defense counsel elicited testimony
from Detective Armstrong indicating that the proper form
includes guidance, including certain specific warnings, about
the signatory's constitutional and other legal rights.
The form advises signatories that they have the right to
refuse consent, and cautions them that information obtained
with their consent can be used against them in subsequent
prosecutions. However, the court is satisfied, based upon
both the content and the tone of the interview itself as
presented in the audiotaped interview, that Detective
Armstrong provided Mr. Richards with sufficient information
concerning his right to refuse consent the steps that would
follow if he withheld his consent.

Throughout
the interview, Mr. Richards's tone of voice suggested
that although he was nervous at times, he was comfortable at
others. For most of the interview, he alternated between a
tone of resignation and, on occasion, a tone of that was
suggestive either of relief or perhaps even optimism that he
might now be able to receive assistance in overcoming what
for him had been a lengthy "issue" or
"problem." The court finds, based upon its review
of the audiotape, that Detective Armstrong was neither
coercive nor deceptive. He did not obscure or downplay the
risk either of prosecution or of incarceration. It is
significant to the court that Detective Armstrong was
informative and appropriately forthcoming about the
possibility of unpleasant consequences prior to eliciting Mr.
Richards' consent. In response, Mr. Richards noted that
he feared that "this might happen someday." As
Detective Armstrong admitted, the improvised consent form was
not only inattentive to detail on his part but was
"careless." The court finds, however, that this
does not undermine the independent existence of consent.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;CONCLUSIONS
...

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